Gujarat High Court
Ashaben D/O Maganbhai Reshmabhai & vs Parshottam Harji Gamit & on 16 April, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/17044/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17044 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ASHABEN D/O MAGANBHAI RESHMABHAI & 1....Petitioner(s)
Versus
PARSHOTTAM HARJI GAMIT & 1....Respondent(s)
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Appearance:
HL PATEL ADVOCATES, ADVOCATE for the Petitioner(s) No. 1 - 2
MS. SHRUTI PATHAK, AGP for the Respondent(s) No. 2
MR P P MAJMUDAR, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/04/2014
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C/SCA/17044/2013 JUDGMENT
ORAL JUDGMENT
The Draft amendment dated 19.11.2013 placed on record is granted permitting to add Hansaben Maganbhai Reshmabhai (expired) as petitioner No.3, which omission was a typographical error and she was party to the proceedings before the authorities below. The amendment shall be carried out immediately.
2. The present writ petition is filed against order dated 12 th June, 2013, passed by the Secretary (Appeals), Revenue Department, whereby the said authority allowed the Revision Application of respondent No.1 herein. The orders passed by the Deputy Collector and Collector came to be set aside and the order dated 1st September, 2000, of the City Survey Superintendent mutating entry in favour of respondent No.1 on the basis of registered Will was restored.
3. The dispute before the revenue authorities on the mutation entry was relating to land bearing city Survey No. 1287/A/1, admeasuring 494.57 sq. mtrs., situated at village Vyara. The said land stood in the name of one Sukhabhai Reshmabhai Gamit, the original occupant, who died on 7th July, 2000.
3.1 The events and proceedings took place thereafter are summarised hereunder. They are the facts in the background leading to the impugned order.
(i) After death of said original occupant, respondent No.1 Parsottam Harji Gamit applied for mutation of his name on the basis of Will executed in his favour.
(ii) On the basis of the Will dated 19 th January, 1989, which was a registered Will, the name of respondent No.1 came to be entered in the City Survey records on 5th Sept. 2000.
The say of respondent No.1 was that deceased Sukhabhai had no heirs, and he being his nephew, the Will was executed. A pedigree was produced before the City Survey authorities.
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(iii) The petitioners who are the nieces of the deceased Sukhabhai and daughters of brother of the deceased named Maganbhai, felt aggrieved. They filed Appeal No.11 of 2001 before the Deputy Collector, which was allowed and the Dy.Collector by order dated 8th July, 2002 cancelled the mutation entry, and remanded the case for decision afresh.
(iv) Respondent No. 1 preferred appeal before the Collector against the above order. The Collector by order dated 13th March, 2003 confirmed the order of Dy. Collector.
(v) Respondent No.1 filed Revision Application under sec. 203 of the Bombay Land Revenue Code 1879 read with Rule 108(6) of Bombay Land Revenue Rules, against the order of the Collector. That culminated into the order impugned in this petition.
(vi) Respondent No.1 had initiated Special Civil Suit No.27 of 2003 before the Civil Court at Bardoli, and the Court had granted interim injunction in favour of respondent no.1 plaintiff as per order dated 24th March, 2006.
3.2 According to the case of the respondent No.1, he became owner on the basis of registered Will and after death of deceased Sukhabhai, he had constructed house and was staying there with family. It was the case that the Deputy Collector passed order without making him the party. The case of the petitioners before the authorities was inter alia that the Will was got executed by respondent No.1 without their knowledge and behind their back. It was the case that the petitioner Ashaben and Lataben were the nieces and their mother Lataben were entitled to inherit the property. The petitioners' father Maganbhai Reshmabhai died in 1975. The Deputy Collector and Collector in their orders made observations in the above regard and took a view that the dispute was regarding the validity of the Will and to decide the said aspect, the civil court was the forum. The said authorities further held that as the Page 3 of 6 C/SCA/17044/2013 JUDGMENT deceased Sukhabhai Reshmabhai Gamit had no direct heirs, the name of the petitioners were required to be entered in the records under the Hindu Succession Act.
3.3 The Deputy Secretary (Appeals) while allowing the Revision held that the rights of parties to the land property in question and the dispute about the validity of the Will were the questions to be settled by the trial Court. It held that the Will was registered one and when on the basis of that the City Survey entry was made, no error was committed. It reasoned that the parties had to seek relief from the civil court in respect of the Will. It noted the fact of aforesaid suit filed by respondent No.1.
4. Heard learned advocate Mr. Vijay Patel for H. L. Patel Advocates for the petitioners and learned advocate Mr. Kuntal Joshi for learned advocate Mr. P. P. Majmudar for respondent No.1 and learned Assistant Govt. Pleader Ms. Shruti Pathak for respondent No.2.
4.1 Learned advocate for the petitioners submitted that the view taken by the Deputy Collector and the Collect was proper and the entry could not have been made showing the name of respondent No.1 on the basis of the Will when it was not valid. Learned advocate in his submission also raised a contention that execution of Will and transfer of the land effected thereby were in violation of Section 73AA of the Bombay Land Revenue Code, 1879. He submitted that as per the said provisions, the occupancy rights of a Tribal person cannot be transferred to another Tribal or non-Tribal. It was submitted that, therefore, the entry on the basis of the Will was illegal and could not be allowed to stand. Learned advocate in support of his submission relied on decision of Division Bench of this Court in Shamjibhai Keshavjibhai Kansagra (Patel) vs. Principal Secretary, Revenue Department [ AIR 2011 Guj. 55].
4.2 On the other hand, learned advocate for the respondents supported the order of the Deputy Secretary (Appeals) submitting that name of respondent No.1 was duly entered on the footing of registered Will in his favour. He submitted that the petitioners had never gone to civil court to dispute the Will. Learned advocate for the respondent relied on decision Page 4 of 6 C/SCA/17044/2013 JUDGMENT of this Court in Jhaverbhai Sevjibhai Patel through POA Holder Ashok J. Patel vs. Kanchaben Nathubhai Patel & Ors. (2005 (3) Guj. 657) wherein this court stated the principle that entry cannot be registered on production of registered Will. Another decision in Babubhai Mafatlal Patel Vs. State of Gujarat (2012 (2) GCD 1420) was also relied on wherein Division Bench reiterated the principle that title dispute and question of mutation entry involving claims of title and the property could not be gone into by writ Court exercising powers under Articles 226 and 227 and that the competent Court would be the civil court.
5. Having considered the controversy, it is not in dispute that it was on the basis of registered Will that the name of respondent No.1 was entered in the City Survey records. Unless the Will is declared illegal, the rights flowing from it have to be respected and given effect to. For entering the name of respondent No.1 in the City Survey records there was a valid basis of registered Will produced by respondent No.1. The question of validity of the Will has to be decided by competent civil court and no such civil action was initiated by the petitioners. Without getting declaration that Will in favour of respondent No.1 was illegal and invalid, the petitioners could not successfully resist making of entry in City Survey records. The petitioner had not instituted any civil suit for any such relief. Special Civil Suit mentioned above is instituted by respondent No.1 seeking injunction against the petitioner for injunction on the basis of Will.
5.1 As far as contention that the transfer of property by way of Will done by deceased was not permissible in view of the bars under sec. 73AA of the Code, such was never the case of the petitioners before the authorities. It was sought to be raised for the first time in this petition. Therefore, the same cannot be gone into in this petition. In any view, no proceedings are initiated for breach of Sec. 73AA nor the authorities had an occasion to go into that issue. It is for the authorities to examine the same in accordance with law. In absence of it, the entry recorded on the basis of registered Will cannot be called in question to its validity nor it could be made qualified. The examination of the said issue in accordance with law is not precluded. In Shamjibhai Keshavjibhai(supra), the aspect of breach of sec. 73AA was examined and on that basis, the entry was Page 5 of 6 C/SCA/17044/2013 JUDGMENT refused. The facts of this case differs as the said question never came up or raised before the authorities and is entirely a new case put forth in this writ petition.
6. Therefore, in the facts and circumstances, the reasoning of the Revisional Authority that entry recorded on the footing of a registered document, was proper and the parties had to take recourse to civil court, if there was any dispute as regards the Will, was eminently justified and it reflected correct approach in law. The impugned order deserves to be upheld. It warrants no interference.
6.1 At the same time, since Special Civil Suit No.27 of 2003 initiated by respondent No.1 based on the Will in his favour is pending, it would be proper that below the entry in question, the fact of pendency of the said suit is indicated by the authority concerned and the entry is made subject to the decision of the civil court in the said suit. The competent City Survey authority shall put endorsement in the entry accordingly.
7. Subject to observations above, the challenge in this petition fails. The petition is dismissed. Notice is discharged.
(N.V.ANJARIA, J.) cmjoshi Page 6 of 6